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Will the NLRB implement labor protections within the marijuana trade?


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WASHINGTON — Will the Nationwide Labor Relations Board implement labor regulation protections within the hashish trade? This query was raised by an attendee on the American Bar Affiliation’s 2022 Labor and Employment Legislation convention, Nov. 10.

The inquiry got here simply days after Maryland and Missouri legalized leisure hashish within the 2022 midterm elections, reigniting dialogue on what many HR professionals and authorized groups say is without doubt one of the most difficult compliance points.

In posing their query, the attendee acknowledged that the Board had exercised jurisdiction in medical marijuana-related circumstances. “Have they thought of whether or not they may be capable of train jurisdiction over leisure marijuana, realizing that it’s nonetheless unlawful beneath federal regulation?” they requested. 

“To that query, I feel I can say this — and somebody might shoot me — however there are circumstances earlier than the board coping with the retail sale of marijuana,” Hon. David M. Prouty mentioned. The attendee pushed slightly, asking if the board has “definitively acknowledged” whether or not it can train jurisdiction, mentioning that the employer would possibly increase jurisdiction as a threshold subject. 

“Your query is as a result of it’s a federal crime now?”

“Proper.”

“Can’t reply that, sorry,” Prouty mentioned with out lacking a beat, at which conferencegoers erupted into laughter. 

NLRA protections for weed staff are murky

An attention-grabbing case research is that of Wellness Connection of Maine, a outstanding medical marijuana operator. Again in 2014, the Workplace of the Common Counsel advisable a regional NLRB workplace examine unfair labor apply fees — on this case, illegal surveillance, interrogation and retaliatory self-discipline and termination — in opposition to Wellness Connection of Maine. 

First, this raised the query about whether or not its marijuana processing assistants had been agricultural staff exempt from Nationwide Labor Relations Act protections. Wellness Connection of Maine grows, processes and retails hashish, and operates a number of dispensaries throughout the state,  and the Board concluded that “an enterprise that’s concerned within the medical marijuana trade is inside the board’s jurisdiction if it in any other case meets the board’s financial jurisdictional requirements, and that the board ought to assert jurisdiction over one of these enterprise enterprise.” 

The Board famous the Occupational Security and Well being Administration investigates and cites firms on this scene, together with Wellness Connection of Maine; and the United Meals and Business Employees Worldwide Union represents these staff by its Medical Hashish and Hemp Division. 

In 2021, nevertheless, the Board concluded that staff at a separate hashish firm had been agricultural staff as a result of they harvested and pruned crops by hand.

TL;DR: If nonagricultural staff have complaints to make in opposition to a medical hashish employer, it’s not but completely clear whether or not the NLRB will step in.

What may protections for leisure hashish staff seem like?

Finally, the ruling within the 2014 case research got here right down to cash. As famous within the steerage, the NLRB has declined to assert jurisdiction over sure lessons of staff — typically together with of us in nonprofits and charities, “small intrastate corporations,” and people within the canine racing and horse racing industries. “The Board has typically relied on findings that an employer was small, native, and didn’t considerably have an effect on commerce or {that a} state or international entity exerted vital management or regulation over an employer,” members wrote.

In distinction, Wellness Connection of Maine was estimated to serve about three-fourths of Maine’s medical marijuana customers again in 2013 when NLRB deliberated the case. It emphasised that not solely did the hashish firm “meet the board’s financial jurisdictional thresholds,” however {that a} “labor dispute involving the trade may have a considerable impact on interstate commerce.” 

Plainly talking, the NLRB could be inclined to get in on labor disputes concerning leisure hashish staff, ought to the costs be made in opposition to multi-state operators or deeply worthwhile dispensary chains.

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